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rogus

Second Class Petty Officers
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  1. At the moment I'm awaiting the paperwork I need to sign for the lawyer. I will keep this post updated as events unfold. I don't know if the following info is of interest but the lawyer told since this was a CUE claim that it isn't bound by the same time limits as appealing a regular denial. Don't know if that info is of help to anyone out there but I hope it is.
  2. Berta - got a call yesterday and he's going to take my case. He said the VA has a special division for handling claims that were denied due to CUE and that it should only take 3 - 6 months to get the case resolved.
  3. Even if they don't take my case I would like to thank all the forum members for their support.
  4. Case update: (email): I am an attorney here in the VA Disability Department at Gardberg and Kemmerly. Thank you for reaching out to us to let us review your case. You have provided us with a good bit of information already with which to evaluate your case. I greatly appreciate your in depth explanation and rationale regarding the timeline of your claims. Basically, you were rated as totally disabled as on April 8, 2002, the date which you submitted your application for TDIU. They denied you because you were already at 100%, but then came back and said that you were actually not entitled to service connection for PTSD in the December 28, 2004 Rating Decision because there was no evidence of an in-service stressor. However, on August 29, 2015, a Rating Decision re-established your service connection due to the “new” medical evidence that was previously part of the VA medical evidence, but simply wasn’t reviewed. They also granted your entitlement to TDIU at that time due to your PTSD. So – There is a gap from April 1, 2005 through January 21, 2011 where you were not compensated at the 100% rate because of a CUE that was later determined (by the BVA) to be NOT Clear and Unmistakable. It seems to me that the evidence in the possession of the VA (constructive or otherwise) at the time of the December 28, 2004 Clearly and Unmistakably showed your entitlement to not only service connection for PTSD, but also TDIU, which was later awarded. Before we accept a case, we discuss the cases at our weekly Attorney meeting. Each attorney is able to provide input as to what they believe can be done on the case. I would like to discuss your case with the group to come to a consensus as to whether or not we may be able to help
  5. Thank you for the info. AmVets is the org that hung me out to dry telling me my case was unwinnable and the VFW is the org that told me not to file.
  6. Berta - I was awarded back pay from 1998 to 2002. In 2002 the VA regional had reversed it's original decision from 98 and granted me service connection and a 100% rating (just not T&P). The problem occurred in between 2005 and 2010 after the VA claimed they committed CUE in a 2005 decision and then they severed my service connection. The BVA did re-instate my service connection for PTSD and I was back payed from 2011 to 2015 In 2010 I filed a form late and the VA then afterwards claimed they only received my claim in 2011. I'll search for that document. The VFW didn't see any problem with that after the BVA awarded the claim and I didn't see any problem till I recently looked closer at the BVA award letter recently which is why I contacted the lawyer. I just finished filing their intake paperwork out so I don't know yet if anyone there wants to touch this. Contacted the VFW once I realized what the BVA had noted about the evidence that the VA had in their possession prior to their 2005 decision to sever my service connection but the VFW didn't want to touch it. I will find the VA letter on why they claimed cue and post it. But yes I am seeking a lawyers help with this to file something formally. I didn't file anything previous because at the time of that decision I was relying on the VFW to steer me correctly and I put the BVA document away without really reading anything other than the fact they approved my claim. It has taken me this long to be able to look at that BVA letter simply because until now I didn't think I could handle it mentally. If there is someway to send these documents to you directly this might speed up the process.
  7. Ok. Here is the BVA decision. redactp1.docx redactp2.docx redactp3.docx redactp4.docx redactp5.docx redactp6.docx redactp7.docx redactp8.docx
  8. broncovet and Berta - let me see if I can find a way to redact the personal info and I will post the bva decision.
  9. To Berta and broncovet - I did not mean to imply anything negative about either of yours intentions. I realize that you are both only trying to help. If I beleived otherwise I wouldn't have come to this forum. I don't mind discussing the effects that my PTSD has had on me over the years, however it literally took me years to discuss why I have PTSD with my current VA psychologist. As I had mentioned the cause is mentioned throughout my BVA desicion and I would have to heavily redact it probably to the point that the document would be meaningless. I then feel that some well intentioned member of the forum would would do a search one some of the unredacted phrases simply to get a better idea of what's happening with my case. In doing so would undermine the privacy that I wished to protect. I would like to say that the responses I have already recieved have helped me out tremendously and I thank everyone who responded to my post. I really need the encouragement and support to proceed and I appreciate the fact that a site such as HadIt exists. I expect a response from the lawyer today. I will post the response and i will keep the forum updated. PS Berta - like your taste in music.
  10. 38 CFR § 4.6 - Evaluation of evidence. § 4.6 Evaluation of evidence. The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. I think I can see how this might apply.
  11. § 3.156 New evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. (a) New and material evidence. For claims to reopen decided prior to the effective date provided in § 19.2(a), the following standards apply. A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. (Authority: 38 U.S.C. 501, 5103A(f), 5108) (b) Pending legacy claims not under the modernized review system.New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. (Authority: 38 U.S.C. 501) (c) Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met; (ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim. (2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department or from any other official source. (3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. (4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim. (Authority: 38 U.S.C. 501(a)) (d) New and relevant evidence. On or after the effective date provided in § 19.2(a), a claimant may file a supplemental claim as prescribed in § 3.2501. If new and relevant evidence, as defined in § 3.2501(a)(1), is presented or secured with respect to the supplemental claim, the agency of original jurisdiction will readjudicate the claim taking into consideration all of the evidence of record. Cross References: Effective dates - general. See § 3.400. Correction of military records. See § 3.400(g). [27 FR 11887, Dec. 1, 1962, as amended at 55 FR 20148, May 15, 1990; 55 FR 52275, Dec. 21, 1990; 58 FR 32443, June 10, 1993; 66 FR 45630, Aug. 29, 2001; 71 FR 52457, Sept. 6, 2006; 84 FR 169, Jan. 18, 2019; 84 FR 4336, Feb. 15, 2019; 86 FR 15414, Mar. 23, 2021] I think you are correct there.
  12. I have a rather stubborn streak in me to accomplish things which is why I fought the VA for 10 years. However my wife, not so much. I haven't even spoken to her yet about this since I am awaiting a reply from the lawyer. I must admit that if the VA were to suddenly decide to cut my T&P my wife and I could be out on the street in short order. I certainly don't mind giving up a percentage of backpay to the lawyer afterall they are performing work on my behalf. I don't expect anyone to work for free. I do however expect to be treated fairly by the gov't whose salary I helped pay. I am not afraid of going thru8 more C&P exams. Been thru them multiple times already and they all came out in my favor. I was even sent to a different VA then my local VA for an exam and it still came out in my favor. Personally I think that that was a ploy on their part in hopes of getting at least one C&P examiner to disagree with the ones that supported my case. In 2015 when they were forced by the BVA to grant my claim they only rated me at 50% and claimed to have based this on my current medical records. Of course the problem with that is that I have been dealing with thought of suicide on a regular basis since before 2002 and that is in my medical records. I have even asked my VA psychologist if there is an answer I can give other than "yes" when I go in for other appt's and of course they ask you if you have had any recent thought's of suicide. I don't want to lie and say "no" but I only want to discuss those things with my mental health provider. However, having had to represent myself for a few years I had to try to study some VA law and know that suicidal ideation is listed in the VA laws as a 70% or 100% rating criteria and not 50% or below. I had to fight them till 2018 to get them to correct that. They had sent me for a C&P in 2016 after I filed an NOD and that not only came out in my favor and even listed the fact that I have recurri9ng thoughts of suicide. I believe the 50% rating was just another thing the VA did intentionally to screw me over. There's a reason I'm paranoid about dealing with the VA. I'm sorry if I am rambling. As far as posting the full bva desicion or other paperwork I would rather not simply for the sake of my privacy. What happened to cause my PTSD is referenced throughout and that is something I wish only to discuss with my doctor whom I have spent years with in developing trust. I don't mean to offend but when it comes to certain things I prefer to keep them to myself. I hope you understand. I am not ashamed that I have PTSD and even recurring thoughts of suicide and I don't mind sharing that. However the cause is something I wish to keep private.
  13. Have been getting over back surgery and have contacted a lawyer. This is what I emailed to her which sums up my situation: In an odd situation and don't know what avenue if any I should or can pursue. I originally filed in 1998 for PTSD and fought 4 years for it against the VA. In 2002 I was awarded 100% (but not total and permanent and was in psychiatric ward twice that year). In 2004 the VA Claimed CUE (clear and unmistakable error) and severed my service connection in 2005. For the first 2 years a vet org helped me appeal and then just started ignoring my request for help. I was given the impression that my case wasn't winnable and they would no longer pursue it. I then spent a few years trying to defend myself but in 2010 I filed some paperwork late but continued on with the appeal process. Around 2013 I managed to find another VSO that would help me out and eventually (2015) I won my case, I was rated at 70% for my PTSD and with my IBSD rating that kicked it up to 80% and I was awarded T&P IU. However, I was only back payed to 2011. Talked to the regional office and was told it was because I filed that paperwork late in 2010 but that I could appeal that. Now I have been in the psychiatric ward 6 times in the past (last time in 2006) and still have thoughts of suicide on a regular basis. Right now I'm on the VA "Hot List" and am getting calls from VA social workers to make sure I'm ok. Well after spending 10 years worrying about whether I and my family were going to make it and going into debt I was happy to just call it quits at that point and figured it was just the VA getting a last "boot in". A couple of days ago I found a copy of the VBA Judges decision and actually read it thoroughly. This is a direct quote, "Service connection for an acquired psychiatric disorder was previously denied, however,at the time of the last decision on this claim, some of the Veteran's service records were not in the claims file.They have since been obtained. Under 38 C.F.R. § 3.156(c) (2014), if at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Here, because relevant service treatment records have been received since the last decision on this claim, and because there is no indication that VA previously would have been unable to obtain them because they did not exist or because the Veteran failed to provide sufficient information, the claim must be reconsidered on the merits. See id." The BVA's desicion also explicitly states that the VA's claim of CUE (which was how they justified severing my service connection in 2005) was in error. It specifically lists documents that the VA had in their possesion prior to their 2005 severence of my service connection for PTSD which counters the Regional Offices claim of CUE. These documents included my 1998 C&P exam results, a letter from of support in 2002 from my previous psychiatrist (outside of the VA - Dr Bharati) and a letter of support in 2004 from my new (at the time) psychiatrist at the VA hospital (Dr. Alexander). Although the VA has sent me an electronic copy of all their records concerning this case it appears that the letter of support that Dr. Alexander wrote in 2004 is missing. I must assume that is one of the missing documents the BVA refers to. Fortunately I still have a personal copy. So the VA put me thru hell for 10 years for a mistake they made by mysteriously losing records from my file and incorrect application of CUE rules. Then I lost 5 years of back pay after I made a mistake - after having been put in a situation the VA created themselves and that I shouldn't have been put in, in the first place. I believe I should not have been responsible for correcting the VA's mistake nor should I be responsible for any error's I might have made along the way when the BVA states that I had already provided ample evidence to win my case prior to the VA severing my service connection. Really, the guy with PTSD is responsible for correcting the the gov't agency that has thousands of people who are supposed to be trained in deciding these cases correctly? Am I understanding this correctly or is my anger after finally realizing what happened clouding my view? If I am correct is there anything I can do about it? The VSO that helped me finally win this case told me that if I pursue this I might lose my T&P rating (simply because that's how the VA has treated me) and possibly have to go thru another decade of their bs. I got to admit I was even afraid of requesting records simply because of the bs that the VA pulled over that 10 years and am in no condition to go into another decade long fight with them. Finances are starting to get tight.I can't hold a job because to much stress will cause me to have hallucinations (which is why I was in the psych ward twice in 2002 the last year I held a job). Not only that but I can't even try to raise a few bucks by selling my plasma because of the years I was overseas. My wife who quit her part time job in 2018 to look after me meets the VA's requirement as a Care Provider but because I served after Vietnam and before 9/11 she can't sign up for that program till Oct 2022. I don't know what to do or even if I can do anything? Plz send some advice my way.
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